By Hilary Zornow
The relationship between the Crown and First Nations peoples in Canada is complicated to say the least. The policies which govern this relationship are often misunderstood not only by the general public, but the First Nations people themselves. With the exception of the current generation who are now privy to First Nations history in some public secondary schools, most Canadians have never learned about the Indian Act, the sordid history that played out as a result of this policy and the creation of a modern day treaty process to resolve a hundred plus years old land question. New developments in case law, namely the Tsilhqot’in case, and the media fervor that followed suit has created a landscape of confusion in relation to what exactly Aboriginal title is and if we should continue to negotiate modern day treaties.
Over the decades various court cases have further enhanced Aboriginal title. The Tsilhqot’in decision now joins a series of other monumental decisions before it that form what is known as case law. Case law is the reported decision of appeals courts or the Supreme Court of Canada that make new interpretations of law and therefore set a precedent. In plain language, this means one court decision will impact or influence the results of another court decision after it. It is important to recognize that while there have been many exciting precedent setting cases, these decisions do not apply to all cases brought to the court. Every land claim brought to court is subject to interpretation of the law and examination of evidence by the court judge. The Supreme Court of Canada, through the historic Delgamuukw decision, has set forward a ‘test’ to prove Aboriginal title which is often difficult for First Nations to meet. Through this test First Nations must prove their occupation or possession of the land prior to European contact and this occupation must have been exclusive (cannot be held by more than one nation). The Tsilhqot’in decision has expanded the possibility for more semi-nomadic Nations to be successful in a land claim which hadn’t seemed possible before, however, the quality and quantity of evidence a First Nation must present in their claim may not be sufficient enough to be awarded Aboriginal title.
What makes the Tsilhqot’in case significant is that it is the first time the courts have declared Aboriginal title exists over a specific parcel of land. The decision makes it clear that once aboriginal title is proven, the title holder is entitled to the economic benefits derived from the land. The court also emphasizes the communal nature of Aboriginal title as established in Delgamuukw that the land “cannot be alienated except to the Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it”. The Tsilhqot’in have gained a substantial victory in expanding the definition of Aboriginal title, yet there exists a possibility that the Tsilhqot’in could face legal challenges by members of their community or other interest groups on the premise of land use and the impact on future generations.
The decision is not a guarantee that another First Nation filing a land claim in court will have the same result. The ruling in a court case granted rights to the land but the benefits are not as comprehensive as a treaty which includes self-governing rights, financial benefits and legal jurisdiction. There is no doubt that the Tsilhqot’in decision will certainly lead to more positive outcomes for other First Nations currently pursuing a land claim through the court, however, it has not definitively answered the land question for First Nations as a whole. The Supreme Court remains steadfast that it favours negotiated settlements. The lengthy and costly nature of litigation also carries a considerable financial risk to First Nations who may spend millions on a court claim that may or may not be successful. In terms of weighing the merits of a negotiated settlement over court action it can be said a treaty offers something litigation cannot – a form of sovereignty and control over our own affairs.
Source used for this article: Coates, Kenneth and Dwight Newman. “The end is not nigh: Reason over alarmism in analyzing the Tsilhqot’in decision” Macdonald-Laurier Institute, September 2014.
The relationship between the Crown and First Nations peoples in Canada is complicated to say the least. The policies which govern this relationship are often misunderstood not only by the general public, but the First Nations people themselves. With the exception of the current generation who are now privy to First Nations history in some public secondary schools, most Canadians have never learned about the Indian Act, the sordid history that played out as a result of this policy and the creation of a modern day treaty process to resolve a hundred plus years old land question. New developments in case law, namely the Tsilhqot’in case, and the media fervor that followed suit has created a landscape of confusion in relation to what exactly Aboriginal title is and if we should continue to negotiate modern day treaties.
Over the decades various court cases have further enhanced Aboriginal title. The Tsilhqot’in decision now joins a series of other monumental decisions before it that form what is known as case law. Case law is the reported decision of appeals courts or the Supreme Court of Canada that make new interpretations of law and therefore set a precedent. In plain language, this means one court decision will impact or influence the results of another court decision after it. It is important to recognize that while there have been many exciting precedent setting cases, these decisions do not apply to all cases brought to the court. Every land claim brought to court is subject to interpretation of the law and examination of evidence by the court judge. The Supreme Court of Canada, through the historic Delgamuukw decision, has set forward a ‘test’ to prove Aboriginal title which is often difficult for First Nations to meet. Through this test First Nations must prove their occupation or possession of the land prior to European contact and this occupation must have been exclusive (cannot be held by more than one nation). The Tsilhqot’in decision has expanded the possibility for more semi-nomadic Nations to be successful in a land claim which hadn’t seemed possible before, however, the quality and quantity of evidence a First Nation must present in their claim may not be sufficient enough to be awarded Aboriginal title.
What makes the Tsilhqot’in case significant is that it is the first time the courts have declared Aboriginal title exists over a specific parcel of land. The decision makes it clear that once aboriginal title is proven, the title holder is entitled to the economic benefits derived from the land. The court also emphasizes the communal nature of Aboriginal title as established in Delgamuukw that the land “cannot be alienated except to the Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it”. The Tsilhqot’in have gained a substantial victory in expanding the definition of Aboriginal title, yet there exists a possibility that the Tsilhqot’in could face legal challenges by members of their community or other interest groups on the premise of land use and the impact on future generations.
The decision is not a guarantee that another First Nation filing a land claim in court will have the same result. The ruling in a court case granted rights to the land but the benefits are not as comprehensive as a treaty which includes self-governing rights, financial benefits and legal jurisdiction. There is no doubt that the Tsilhqot’in decision will certainly lead to more positive outcomes for other First Nations currently pursuing a land claim through the court, however, it has not definitively answered the land question for First Nations as a whole. The Supreme Court remains steadfast that it favours negotiated settlements. The lengthy and costly nature of litigation also carries a considerable financial risk to First Nations who may spend millions on a court claim that may or may not be successful. In terms of weighing the merits of a negotiated settlement over court action it can be said a treaty offers something litigation cannot – a form of sovereignty and control over our own affairs.
Source used for this article: Coates, Kenneth and Dwight Newman. “The end is not nigh: Reason over alarmism in analyzing the Tsilhqot’in decision” Macdonald-Laurier Institute, September 2014.
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